Crime and punishment: A papal bull in the Church’s china shop

Pope Francis has decided not only to raise questions about the prudence of capital punishment in our world today but also to cast into doubt centuries of previous Catholic moral teaching on the subject. It is true, to give Pope Francis his due, that there is no single definitive teaching by the Magisterium of the Church which proves beyond a shadow of doubt that he is demonstrably wrong. But all prior ecclesiastical evidence indicates, pace Francis, that capital punishment may be applied morally by legitimate public authority for grave crimes with the purpose of punishing evil and protecting the common good.

Even the latest changes to the Catechism can be interpreted in a manner consistent with this moral tradition. This consistency represents the current state of the teaching of the ordinary Magisterium on the subject, reaffirmed and clarified many times, strongly rooted in Sacred Scripture, and repeated in the Fathers of the Church. But definitive Magisterial statements are in short supply, for the historical reality is that this teaching has been considered so obvious that it has never been thought necessary to make it the subject of either a papal or a conciliar definition.

For this reason, most past papal statements consist of clarifications in various interventions over the centuries which rule out abuses, such as private vengeance, duels, bodily mutilation, or even faulty purposes invoked by the State. There are strong arguments in favor of the legitimacy of capital punishment from Scripture and the Fathers, but the closest thing we have from the Magisterium itself to something absolutely definitive (and it is very, very close) is the Confession of Faith prescribed by Pope Innocent III in 1208, and updated in 1210, for the reconciliation of the heretics Durand Orca and his Waldensian companions. The emendation in 1210 of this text, which was imposed on heretics to ensure their correct understanding of Catholic faith and morals, reads as follows:

Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly. [Denz #425]

The odd wording of this prescription arises because it is a direct response to an error of the heretics, who held that public officials who participate in capital punishment are by that fact guilty of serious sin. But a number of other instances of papal intervention uphold the public authority’s right to apply the death penalty, as opposed (for example) to the sinfulness of private duels (e.g., Leo XIII’s letter to the bishops of Germany and Austria “Pastoralis Officii”, 1891), or (another example) to the sinfulness of bodily mutilation (e.g., the legitimacy of execution is taken for granted in this context by Pius XI’s encyclical Casti Connubii, 1930).

In other words Pope Francis, through a sort of private pontifical willfulness, thinks to overturn the continuous Catholic understanding of Scripture, the Fathers, and papal decisions over the entire history of the Church when he over-zealously asserts that previous Church teachings upholding the legitimacy of capital punishment were “more legalistic than Christian”, and claims to have changed the Catechism as a way of “taking responsibility for the past” by acknowledging the flaws in past statements.

This is very brash indeed. Of course, the Pope could easily highlight today’s neuralgic point, without any scandal whatsoever, by issuing a clear statement such as the following:

Without in any way casting doubt on Scripture, the Fathers and past papal statements on this issue, I wish to call attention to a concern that is very important in our own time: With reference to the death penalty, in the past the Church has rightly upheld what is strictly morally permissible to the civil authority, but she has not addressed whether or not it would be wiser to forego what is morally permissible—but not morally required—in favor of a different approach, an approach to punishment which accentuates the value of even the lives of those guilty of grave crimes. It is precisely this which I wish to address.

I advise all men and women, therefore, that it is better to forego capital punishment whenever that can be done without endangering the innocent, which I believe is almost universally possible in our time. I urge all men and women of good will to seek to change the laws of their own states and countries to reflect this better course of action. At the same time, I cannot fail to acknowledge that, within just moral limits, the protection of the common good—including the possibility of capital punishment in any given case—is the province of the civil authority, and cannot be predetermined by the Church.

The preceding text, again, is imaginary. But those who take the continuity of Catholic teaching seriously—those who understand that the development of doctrine excludes self-contradiction—have naturally insisted that Pope Francis’ revision of the Catechism must be understood in this evangelical and prudential sense. In fact, it is still possible to understand the Pope’s dubious claim that past teaching has been “more legalistic than Christian” in this sense. In doing so, we would admit the possibility that the purpose of past teaching on this subject has been to delineate precisely what is permissible rather than to exhort the faithful to seek what is best.

It would be very like Pope Francis, after all, to dismiss clear articulation of the truth as “legalistic”. But the Catholic faithful are under no requirement to attempt to reconcile every papal remark with past Catholic teaching, for we are not bound by every papal remark. Sadly, it has never been Pope Francis’ way to speak precisely and consistently—or even with a due humility in testing his own ideas against those of his predecessors. We cannot know whether this arises from personal instability or from a personal participation in our epidemic cultural pride, but either way we must endure a pontificate which seems blissfully unaware of our inherited Catholic understanding of the Gospel of Christ, as articulated over nearly two thousand years by inspired authors, Church Fathers and Doctors, saints, synods, councils, and previous popes.

The problem is clear, is it not? If we can so easily dismiss what the Church has consistently taken for granted (or even specifically upheld) in one area, what is to stop us from doing the same in every area? This is precisely the approach taken by so many academic theologians today, who fail to realize they are not the creators but the servants of Revelation—Revelation, without which both the words “theologian” and “magisterium” lose their meaning.

It is a sadness and a suffering for Catholics that today’s Church has something of the delicacy of a china shop, and today’s successor of Peter shows a marked tendency to stamp and snort like a papal bull. As St. Paul wrote to the Thessalonians (1 Thes 5:19-22), we must not quench the Spirit, and must not despise prophesying. Certainly not! But this does not exhaust our responsibility. We must also test everything, and hold fast what is good.

Jeffrey Mirus holds a Ph.D. in intellectual history from Princeton University. A co-founder of Christendom College, he also pioneered Catholic Internet services. He is the founder of Trinity Communications and CatholicCulture.org. See full bio.

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Aside from the murder risks still present among murderers behind bars in "civilized" societies, little mention is noted of the unique corruptions in poorly adjudicated third world societies where controlling prison populations effectively is even more farcical. A just use of course, depends on getting the limited judicial process right.

Posted by: Jeff Mirus -
Dec. 19, 2018 10:18 PM ET USA

Paul8329: There must be some confusion. I agree that it is possible to maintain the position you outline; I have never written anything to the contrary. But this is not the position Pope Francis has taken publicly. He has not only stated that capital punishment is ALWAYS inadmissible, and so is life imprisonment.

Posted by: begnoche7263 -
Dec. 19, 2018 1:22 PM ET USA

The Pope's stance on the death penalty is clear rupture with Catholic Teaching/Tradition. Does anyone really believe that this day and age there should be less capital punishment? Look at all the heinous crime in the US alone, all the repeat offenders. Tell the families of those who had members murdered by convicted felons that we live in a world that no longer needs capital punishment. Gangs running in prisons and still controlling what happens on the outside, insanity!

Posted by: rfr46 -
Dec. 19, 2018 7:37 AM ET USA

Good piece, Jeff. PF is placing himself outside the deposit of faith and tradition on many points. He is not going to get any better, so my conclusion is that faithful Catholics will just have to wait him out, and perhaps wait out his successor, who will be elected by a stacked college of cardinals. But eventually, his invalid teachings will be recognized as such, though perhaps not in my lifetime. I am frankly sick of reading one of his intemperate and vain utterances after another.

Posted by: Randal Mandock -
Dec. 18, 2018 11:35 PM ET USA

AL n. 297: "No one can be condemned for ever, because that is not the logic of the Gospel!" John 2:15: "And when he had made, as it were, a scourge of little cords, he drove them all out of the temple, the sheep also and the oxen, and the money of the changers he poured out, and the tables he overthrew." Which of these two excerpts represents justice? How many of Jesus' teachings point to a hell that is real? Does justice demand? Matthew 25:46: "And these shall go into everlasting punishment."

Posted by: mm7073 -
Dec. 18, 2018 6:27 PM ET USA

I have yet to find one person who has commented on the Pope's current capital punishment reversal, either pro or con, who has addressed the issue of whether or not it is actually possible to protect the citizenry from murderers without resorting to capital punishment when Hispanic gang leaders and mafiosi continue to run crime syndicates from behind bars, ordering the murder by their associates of witnesses and competitors. Time and again we've seen the corruption of the people running the prisons playing a role in this (i.e. payoffs to staff), as well as incompetent oversight by the government (i.e. not rooting out cellphones and/or jamming communications near the prison). As long as there is a human element that must be constantly vigilant to enforce life in prison vs. execution there will be danger to the public, especially those who need to be protected the most - those who put the murderer behind bars.

Posted by: paul8309 -
Dec. 18, 2018 5:43 PM ET USA

Contrary to what you claim: it is indeed possible to hold as a fully Catholic position that the death penalty can **only** be applied when it is needed to protect the common good from the guilty perpetrator. It is a position which is entirely in keeping with Scripture, previous teaching such as the Catechism of Trent, and modern papal teaching such as Evangelium Vitae. It is also a position that can be made consistent with Pope Francis.

Posted by: DanS -
Dec. 18, 2018 5:00 PM ET USA

Thanks, Jeff, for articulating the flaws in the Pope’s methods even if his objective (to end capital punishment) is desirable. I wonder if he realizes his “presentist” approach provides the precedent to justify his successors’ dismissal or reversal of his own decrees? It certainly undermines the authority of the Magisterium, but then, maybe that is his true objective.

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